Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, December 30, 2005

Case Law Development: Privacy of Divorce Court Records Held Unconstitutional

In 2003, New Hampshire enacted legislation restricting public access to financial affidavits in domestic relations proceedings. The Associated Press filed a petition for declaratory and injunctive relief arguing that the act is unconstitutional as a prior restraint under both state and federal constituitons, as a violation of state constitutional guarantees of public access to court records and as a violation of separation of powers under the state constitution.  The Supreme Court of New Hampshire agreed that the statute unconstitutionally restricts access to court documents. 

While recognizing that New Hampshire's constitution establishes a strong presumption that court documents should be public record, the court noted that "not every type of court proceedings has historically been open to the public; nor does public access enhance the integrity or accountability of the judiciary in every situation." The court determined that there does exist, however, a general right of access to divorce proceedings. 

The court then analyzed each section of the statute to determine its constitutionality.  The court upheld the first portion of the statute, which makes financial affidavits automatically confidential, finding that the provision is "a reasonable restriction on the public’s right of access to court records, and is thus constitutional, so long as the financial affidavits retain their status as presumptively open and the public is afforded procedural safeguards required by the constitutional right of access."

As to the procedures by which access to records is obtained, however, the court concluded that the statute was unconstitutional because "it places the burden of proof upon the proponent of disclosure, rather than the proponent of nondisclosure ... it abrogates entirely the public right of access to a class of court records ... and it is not narrowly tailored to serve the allegedly compelling interest of the State in protecting its citizens from identity theft...."

Finally, the section of the statute making criminal disclosure of financial affidavits, the court held that the petitioners had failed to demonstrate that criminal sanctions were threatened and that sanctions were prior restraints under either state or federal constitutional law.

Having found the procedure for access to records unconstitutional, the court determined that this section was severable from the statute and that a party opposing disclosure of a financial affidavit must "demonstrate that there is a sufficiently compelling reason that would justify preventing public access to that document" and the court must "determine that no reasonable alternative to nondisclosure exists and use the least restrictive means available to accomplish the purposes sought to be achieved."

Associated Press v. State of New Hampshire, 2004-830 (December 30, 2005)
Opinion on the web at (last visited December 30, 2005 bgf)

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